Man says Fullerton cops attacked him

SANTA ANA – Eight months before Kelly Thomas' fatal beating in July 2011, one of six officers involved in that Fullerton incident – but not charged in it – moved toward a man filming an altercation, knocking a cellphone camera out of his hands.

That man, Veth Mam, later was arrested, prosecuted and acquitted of misdemeanor charges, including battering and assaulting a police officer. Now he's in U.S. District Court in Santa Ana suing three Fullerton officers for constitutional rights violations and malicious prosecution.

Mam's lawsuit is proceeding against the backdrop of pending criminal charges against three former Fullerton police officers in connection with the beating death of Thomas, a mentally ill homeless man whose Fullerton Transportation Center encounter with the officers was caught on surveillance cameras.

A federal jury is expected to hear closing arguments Monday in Mam's lawsuit, which is being tried in two phases, with the liability phase going first.

A damages phase will follow if the eight-member panel finds that Fullerton police officer Kenton Hampton used excessive force and violated Mam's First Amendment rights by knocking away his cellphone and finds officers Jonathan Miller and Frank Nguyen maliciously prosecuted Mam through the criminal case brought against him for assaulting and battering Miller.

Mam's cellphone video – after the cellphone was knocked out of Mam's hand it was picked up by a friend who continued filming – was key to his acquittal on those charges. The tape is once again a central piece of evidence at the federal trial.

The two-minute-36-second video has been played multiple times for the jury since start of trial about a week ago.

LATE-NIGHT ALTERCATION

Mam alleges that near bar-closing time in the early morning hours of Oct. 23, 2010, he started filming an altercation between Miller and Mam's friend, Sokha Leng, in downtown Fullerton.

In contention, among other issues, is whether Hampton went for Mam's phone or went to grab him, causing the phone to drop.

Hampton smacked the camera out of his hand, Mam testified Thursday, but in a deposition last year Mam said "he was going for me" when asked if the officer intentionally knocked the camera down.

Hampton then "threw me around like a rag doll and flipped me around like a pancake" before kneeing him in the back and handcuffing him, testified Mam, saying he was not resisting.

Mam can be seen on the video being wrestled to the ground and arrested, but Hampton never mentioned the incident with Mam in his police report.

No officer punched him or told him to stop filming, Mam testified. But Hampton went after Mam during the encounter from among the five to seven people around Mam at the time, the officer said in a deposition.

Mam was later charged with misdemeanors, including battery on a peace officer, assault on a peace officer and resisting arrest. He was acquitted of all charges July 7, 2011.

Nguyen and Miller testified at the criminal trial.

"They lied," Mam said in response to a question from one of his attorneys, Garo Mardirossian. "They said I choked officer Miller."

Attorneys representing the officers say in court documents no officer endeavored to prevent Mam from recording events and once the phone fell from Mam's hand, his friend continued recording, as did another person.

"There is no evidence the officers knowingly provided misinformation to the prosecutor, concealed exculpatory evidence, or engaged in wrongful or bad faith conduct," the lawyers further say in court papers.

U.S. District Judge Josephine Tucker rejected some of Mam's claims and dismissed other defendants named in his lawsuit before trial, but allowed the case to proceed on his remaining allegations.

In dismissing Mam's allegation that there was a conspiracy to maliciously prosecute him, Tucker wrote: "The Mam video clearly shows that Nguyen pulls an individual away from Miller while Miller struggles with Leng. Thus, until Miller and Nguyen are shown the video, this is a classic case of mistaken identity," she said in court documents.

"It is also undisputed that Nguyen was not shown the video until less than two hours before he testified at (Mam's) criminal trial. Simply put, there was no opportunity for or evidence of the development of a tacit agreement between Nguyen and Miller or any other officer," she wrote.

Nguyen has testified during the ongoing federal civil trial that at the time he wrote his report he honestly believed it was Mam who attacked Miller but after Mam's criminal trial, he realized he made a mistake.

"However, the fact that Nguyen and Miller saw the video before they testified takes this case outside the ambit of a typical mistaken-identity case," Tucker said in court documents before trial began on Mam's remaining allegations.

"A trier-of-fact could determine that, when confronted with the physical impossibility of Mam being both the person taking the video and the person in the video, Nguyen and Miller deliberately testified falsely at Mam's criminal trial (and misled D.A. [Rebecca] Reed) to sustain the prosecution," the judge said.

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